Sabbath Observance and Workplace Discrimination: Ontario HR Tribunal Awards $4,000.

Can an employer discriminate against Sabbath observers in the course of interviews for employment in Ontario?  If not, what kinds of penalties can employers face when they discriminate in this fashion?  A recent Ontario Human Rights Tribunal case awarded an applicant $4,000 in damages for injury to “dignity, feelings and self-respect” when she was screened out of a job due to her Sabbath observance.

L.W. is a Seventh Day Adventist.  She applied for a position with the Desjardins Group.  The position was a short-term contract to work in a call centre.  Ms W was asked in the interview process if she could work on Saturdays.  She indicated that she could not since this was her Sabbath.  According to the findings of the Tribunal, she was then “screened out” from any further interview process and was not  considered for the position.

Surprisingly, the Tribunal held that it was permissible for employers to ask about work availability.  The Tribunal noted that there was no evidence in this case to indicate that the question was being asked in order to “classify” the applicant by her creed.

However, the Tribunal went on to conclude that the applicant’s inability to work on Saturdays for religious reasons led her to being screened out from any further interview process.  In other words, she was subjected to discrimination on the basis of her creed by the Desjardins Group, according to the Tribunal.  It is hard to see how this type of conduct could be prevented if the Tribunal is correct that applicants can be asked by an employer about work availability.

Nevertheless, the Tribunal found that Ms W. had been subjected to discriminatory treatment.  It awarded her the grand total of $4,000.  This hardly seems like a sufficient incentive to deter employers from discriminating on the basis of creed.  Part of the reason for the modest award was that Ms W., apparently, did not provide evidence of any steps that she had taken to try to find other employment.  But these damages are of a different type.  The $4,000 was awarded as “general damages.”  This should reflect the Tribunal’s view of the respondent’s conduct and its impact on the applicant.  $4,000 does not seem like very much of a deterrent.  I would have thought that $25,000 or $30,000 or even as much as $50,000 would have been an appropriate message to send in light of the seriousness of the impugned conduct and the findings of the Tribunal.

This aspect of the case reminds Ontario residents that even where discriminatory conduct has been proven, the Ontario Human Rights Tribunal may not award a very significant amount of money.  Further since the Ontario Human Rights Tribunal does not award payment of legal fees to successful parties, this type of hearing could be very costly for a claimant.  In many cases, it may make much more sense for a litigant to file a lawsuit in the Ontario Superior Court and to consider asking a jury for its assessment of damages.  A large jury award might serve as a much better deterrent than the modest sum that was awarded in the Desjardins and W. case.

Damages Awarded for Inadequate Response to Harassing Email

Damages Awarded for     Inadequate Response to Harassing Email

To avoid being sexually assaulted, “don’t dress like sluts.” This is one of the pieces of offensive and ill conceived advice provided by a Toronto Police Services officer to a group of York University Students at Osgoode Hall Law School in Toronto on January 24, 2011. The comment outraged students and generated significant negative publicity. According to numerous reports, the officer subsequently sent a letter of apology to the faculty and students and faced some internal discipline. The controversy sparked a “slut walk” in Toronto in early April, at which close to 1,000 marchers walked to Toronto police headquarters to protest the blame the victim mentality towards sexual assaults.

Having a poorly trained or insensitive officer on the front lines in an assault or harassment situation does not meet a reasonable police standard. But in an employment context, it can also give rise to legal liability and damage awards.

In a recent case involving Nipissing University, a professor was awarded $9,950 by the Ontario Human Rights Tribunal when the University was found to have been less than fully diligent in pursuing a harassment complaint.

The professor, who was seven months pregnant at the time, received an anonymous, sexually offensive and threatening email, purporting to be from one of her students. The email was traceable to one of the University’s library computers though the sender was never found. The University had freely available computers in its library with no log in ID required and no surveillance in many of the computer areas.

The University was found to have taken the complaint seriously and to have made some initial efforts to investigate. However, when the professor went to meet with campus security to discuss the matter, she was told “if it makes you feel any better, this isn’t the worst case I’ve seen.” Though perhaps intended by the officer as an effort to console her, the words had the effect of belittling her and leaving her feeling that campus security was not about to take this matter seriously. Due to the content of the email, she was concerned for her safety for the safety of her unborn child.

Although the Tribunal found that the University fulfilled many of its obligations including its general duty to provide a safe work environment and to take this kind of complaint seriously, the University was held to have “failed to remain diligent in pursuit of the matter.” Its policies and procedures for dealing with matters of sexual harassment were found to have been “inadequate to deal with the offensive and threatening email.”

While this is not one of the largest monetary awards that the Tribunal has issued, it is recognition by the Tribunal that employers have a wide ranging obligation to protect their employees from sexual harassment and assault. This includes the requirement to have proper procedures and processes in place for investigating and addressing complaints. Employers must use properly trained officers who are knowledgeable and sensitive and know how to respond to harassment, threats or to an assault. Most significantly, failure to meet these standards may be a breach of the Ontario Human Rights Code and can give rise to awards for damages.

After the incident at York University and the Nipissing University decision, employers should redouble their efforts to ensure that they have proper policies and procedures in place to prevent sexual harassment and assault and to address complaints appropriately. Most importantly, they must ensure that they have properly trained staff to implement the procedures and policies.

Employer’s Obligation to Accommodate Disabled Employees is Limited: Hydro-Québec

Employer’s Obligation to Accommodate Disabled Employees is Limited: Hydro-Québec

In August 2008, the Supreme Court of Canada issued a relatively short and unanimous decision addressing the issue of frequent absences and discussing the obligations of employers in handling these absences.

This case originally came from an arbitrated dispute involving a union. The employee had a lengthy record of absences – missing 960 days of work over a span of 7 years. The employer had adjusted working conditions to try to meet the employee’s needs but these efforts had not been entirely successful. Eventually, the employee brought a physician’s note indicating that she would “no longer be able to work on a regular and continuous basis without continuing to have an absenteeism problem”. The employer dismissed the employee, who then filed a grievance. At arbitration, the arbitrator held that the employee was unable to work for the foreseeable future, as required, and the employer had no further obligations. The case made its way up to the Supreme Court of Canada after the Québec Court of Appeal overturned the lower Court decision and sided with the employee.

The Supreme Court of Canada discussed the concept of “undue hardship” when an employer is required to accommodate a disabled employee. Employers must be flexible in adopting a standard that is appropriate – to ensure that the employee can work. However, the employer does not need to “alter the essence of the contract of employment”. Employers should be required to offer their employees variable work schedules, lighten work loads or authorize shift transfers if these steps can be taken to accommodate the needs of disabled employees.

The Court noted that if an employee’s illness means that “the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test” and will not be required to keep the employee any longer.

The Supreme Court’s decision in this case is not strikingly different from existing case law dealing with disabled employees. Employers have never been required to provide that it is “impossible” to accommodate a disabled employee. Employers should not be required to create entirely new positions or put up with inappropriate levels of chronic absenteeism. Although this decision is another victory for employers, it was a unanimous decision of the Supreme Court of Canada which did not fundamentally change the law.

The one concern that employees may have however, is the absence of genuine empathy in the decision in reviewing the case history. Where Supreme Court of Canada decisions in the past have focused on “vulnerable employees” and the sheer gap in bargaining power between employees and employers, this Supreme Court of Canada decision is most concerned with employer needs to carry on business efficiently and productively.

Perhaps it is too early to assess the impact of this type of thinking on other factual scenarios, but this decision is one of a number of significant decisions issued by the Supreme Court in 2008. All of the decisions sided with employers. Looking at the language used in Hydro-Quebec and the results of the other decisions, employees in Canada certainly have cause to worry about what other decisions might be coming down the pipeline.

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